Ida Wolff bht Steven Binetter v Binetter (No 2)

[2021] NSWSC 1445

Supreme Court

New South Wales

Medium Neutral Citation:

Ida Wolff bht Steven Binetter v Binetter (No 2) [2021] NSWSC 1445

Hearing dates:

On the papers

Date of orders:

10 November 2021

Decision date:

10 November 2021

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1)   The plaintiff pay the defendant’s costs of the proceedings save for the costs in relation to the dispute about costs after judgment was delivered;

(2)   There be no order for costs in relation to the dispute about costs after judgment was delivered;

(3)   The funds paid into Court by the plaintiff as security for the defendant’s costs and any interest paid thereon be released to the defendant;

(4)   Order 3 be stayed up to and including 10 December 2021.

Catchwords:

COSTS – no question of principle

Cases Cited:

E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296

Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249

Steven Binetter as the representative of the Estate of the Late Ida Wolff v Ronald Binetter [2020] NSWSC 552

Category:

Costs

Parties:

Ida Wolff by her tutor Steven Binetter (Plaintiff)
Ronald Binetter (Defendant)

Representation:

Counsel:
D Studdy SC; C Freeman (Plaintiff)
G Sirtes SC; C O’Neill (Defendant)

Solicitors:
Braddon Marx Solicitors (Plaintiff)
Eakin McCaffery Cox (Defendant)

File Number(s):

2018/166618

Judgment

1. On 1 October 2021, I dismissed the proceedings and made orders for the parties to confer about the appropriate costs order and for the filing of submissions in relation to costs (Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249). The parties could not agree on the appropriate costs order and filed submissions accordingly.

2. The defendant sought an order for costs on the ordinary basis up to and including 31 March 2020, and on an indemnity basis thereafter. He also sought an order for the immediate release of the funds paid into Court as security for costs, with any accrued interest, as well as for the payment of interest on costs.

3. The plaintiff accepted that it was appropriate to make an order that he pay the defendant’s costs on the ordinary basis. However, he resisted any indemnity costs order and the release of any security until costs were assessed.

Form of Costs Order

4. The defendant’s claim for indemnity costs was based on the rejection by the plaintiff of an “open” offer made in a letter dated 31 March 2021 proposing that the proceedings be dismissed with no order as to costs and the vacation of a costs order made against the previous tutor, Margaret Binetter. The letter asserted that over $40,000 in recoverable fees had been incurred and was being foregone by the offer. The letter argued that the plaintiff’s case had to fail as there was no evidence of the advance of funds or to support the contention that the late Mrs Wolff was under a disability at the relevant time.

5. Clearly the letter was not an offer of compromise. It was also not expressed to be a Calderbank offer and did not refer to indemnity costs being sought if the offer was not accepted. Nevertheless, I will assume in favour of the defendant that it is to be assessed on the basis that it is a Calderbank offer. In that regard in E Group Security Pty Ltd v Chief Commissioner of State Revenue (No 2) [2021] NSWSC 1296, Ward CJ in Eq stated (at [57]):

“… the making of a valid Calderbank offer better than the result ultimately obtained does not automatically result in an indemnity costs order (Commonwealth v Gretton [2008] NSWCA 117 at [43]), nor does it raise a prima facie presumption that such order should be made (see Jones v Bradley at [7]-[9]; South Eastern Sydney Area Health Service v King [2006] NSWCA 2 (South Eastern Sydney Area Health Service) at [90]); and that the party seeking the order bears the onus of demonstrating that that rejection of the offer was “unreasonable” in all the circumstances of the case (see Leichhardt Municipal Council v Green [2004] NSWCA 341 (Leichhardt Municipal Council) at [19]).”

6. Although the defendant submitted (correctly) that this passage is not an exhaustive statement of the relevant principles, it is sufficient for present purposes.

7. I am not satisfied that the plaintiff’s rejection of the offer in the letter was unreasonable. To the contrary, the offer was barely a compromise at all. At the time of the offer the plaintiff was in possession of a significant body of evidence to demonstrate that the defendant borrowed the funds from Mrs Wolff, as I ultimately found. The plaintiff was still gathering evidence concerning whether Mrs Wolff was affected by a disability. In circumstances where the defendant did not offer a single dollar out of the $1 million that the plaintiff contended, with good reason, was advanced to the defendant, I consider that it would have been difficult, acting consistently with his obligations to Mrs Wolff’s estate, for the plaintiff to accept the defendant’s offer.

8. The defendant served a further letter expressed to be a Calderbank offer on the first day of the hearing, that is 16 August 2021, again offering a dismissal of the proceedings with no order as to costs. However, the defendant did not rely on that offer.

9. I will order the plaintiff to pay the defendant’s costs of the proceedings.

Release of Security and Interest on Costs

10. As noted, I previously made an order for the plaintiff to provide security (see Steven Binetter as the representative of the Estate of the Late Ida Wolff v Ronald Binetter [2020] NSWSC 552). The amount ordered was $145,000.00. It was not suggested that this would be more than the amount of assessed costs.

11. The plaintiff sought to resist the release of the security. He referred to the existence of a judgment debt against the defendant from some years ago that might be unsatisfied and his intention to appeal. The defendant’s overly caustic response described this as an attempt to make the defendant “beholden to either an assessment process or a non-existent appeal”. There is no evidence of the debt and no evidence that the defendant cannot make good if he receives funds for his costs now that must be relinquished if he loses on appeal. In any event I am not hearing a stay application.

12. I will order the release of the security but stay that order for 1 month to allow for an orderly application for any stay to be made to the Court of Appeal. As the security will be released, I will not make an order for interest on costs.

Costs of the Costs application

13. As the parties fought out a draw on this aspect of the proceedings each party will pay their own costs of the dispute about costs.

Orders

14. Accordingly, the Court orders that:

1. The plaintiff pay the defendant’s costs of the proceedings save for the costs in relation to the dispute about costs after judgment was delivered;

2. There be no order for costs in relation to the dispute about costs after judgment was delivered;

3. The funds paid into Court by the plaintiff as security for the defendant’s costs, and any interest paid thereon, be released to the defendant;

4. Order 3 be stayed up to and including 10 December 2021.

**********

Decision last updated: 10 November 2021